SETTLEMENT VALUE IN PERSONAL INJURY

Every personal injury case has unique facts, and thus, will have a unique settlement value. It is important to remember this fact in negotiations, that no two cases are alike, and all though there may be similar factual scenarios in two separate cases, it does not mean they have similar settlement values. However, there are certain factors that you can look at to determine what sort of a value your settlement should have. These factors include the insurance policy limits of the other party, liability, and the damages.

Insurance Policy Limits: when determining the settlement value, it is crucial to know the available policy limits in the matter. For example, if the other party has 15/30 policy limits, and no other assets, you are looking at a potential maximum recovery of $15,000. In this situation, you would look to see whether the injured party has underinsured driver coverage. You can recover from your own insurance company as well when a driver does not have insurance or does not have as much as is needed in your case, assuming of course you have uninsured or underinsured motorist coverage. You must know what kind of range you are dealing with, in order to properly negotiate the case.

Remember that the insurance company you are dealing with has a duty of good faith to their insured to reasonably attempt to settle the case within the policy limits, thereby protecting their insured from a verdict in excess of the limits. Legally, the insurance company cannot disclose what the policy limits are without the consent of the insured. After a lawsuit is filed, the plaintiff can find out the policy limits through discovery. It is in the insured’s best interest to reveal the policy limits of their coverage, and most insurance companies will explain that to the insured. Therefore, normally the policy limits can be revealed without having to go through the filing of a lawsuit and conducting discovery. It can generally be as simple as a demand letter to the insurance company requesting the policy limit amounts, with a reminder that any verdict in excess of the policy limits amount can expose the insurance company to a lawsuit from their insured for the excess portions.
Liability: This factor is straightforward. Who is at fault? If the other party if 100% at fault, it is pretty straightforward. If you are partially at fault, through the doctrine of comparative negligence, the recovery and settlement value will be reduced by that percentage. For instance, if it is determined that you are 50% at fault, it does not mean that you are not entitled to a recovery. It will simply be for half of what you would have received if you were not half at fault. This is the law in California, and although this seems like a common-sense result, in some states, a determination that the injured party was at fault by any percentage, can preclude a recovery entirely.  In cases where there are multiple parties at fault in causing damage to the injured, each party’s fault needs to be determined. In most routine Personal Injury and Accident cases, liability will not be too difficult to determine. But it is obviously a significant factor in determining the settlement value.

Damages: There is an entire page on this website dedicated to how to calculate damages, so this discussion will not go too in depth, but for now it is important to understand that the amount of damages plays a major role in the value of the case.  Basic damages are normally past and future medical costs, lost wages, and pain and suffering. If the damages are high, it will be a high value case, assuming there is a source of recovery and liability is not an issue. If the damages are low, the fact that liability is in your favor and the insurance policy limit is high will not lead to a high recovery. You must have all three working in your favor for a high value case.

Settling a case for a high value is an art form that requires tremendous preparation, and the ability to reason with the other side.  The ability to effectively negotiate cannot be overstated and the selection of an attorney should take this trait into heavy consideration.

The Basics of California Personal Injury Case

The key to success in any Personal Injury case, whether the case is settled or taken to trial, is a strong foundation. A strong foundation consists of a sound initial investigation and gathering of all evidence possible in the case. Whether the case is an auto accident, a defective product or an injury from premises liability, the following steps are crucial to success:

1. The accident scene: As soon as possible, a visit to the accident scene should occur. Photos of the scene should be taken right away. The more time passes between a photo of the accident scene and the date of the accident, the less relevance the photo has.
a. Any photo of the scene at or near the time of the accident, or before the accident should be searched for as well.
b. Any video of the scene should be investigated as well, including any potential video of the actual accident. An examination of any surveillance cameras should occur immediately. Generally, surveillance camera footage is only kept for a limited period of time, so if there are cameras, and they contain any potential footage of the accident, or even vehicles involved in the accident, notification to the owner of the footage that they are in possession of potential evidence should be done right away. Also, just because an initial investigation of the accident scene does not disclose the existence of any cameras, it is wise practice to contact the authorities in charge of the intersection to see if there might be any cameras that might not be visible.
c. A diagram of the accident scene should be obtained, including approximate measurements, traffic signs and signals, etc.
2. Medical Information- the evidence of the injury is obviously crucial. This consists of two separate categories:

(1) obtaining all medical reports – whether it be from the treating physician, the ambulance or paramedic report, etc. All reports from Medical professionals in regards to your medical condition in relation to the injury-causing incident should be obtained and thoroughly analyzed.

(2) getting the appropriate medical care- The treating physician often does not appreciate the importance of obtaining actual evidence of the injury. Getting the appropriate proof of the injury can be crucial later in your case. A doctor’s opinion as to the injury is generally not sufficient, if there are certain tests that can be run to confirm an injury, they should be run. If it is necessary to bring in a specialist to confirm any injury, it should be done. The reason all of this needs to be done, is that the insurance company or the jury is going to want proof of the actual injury. The treating physician’s opinion that an injury occurred will not be sufficient, so if there are additional ways to obtain that proof, it needs to be done.
3. Contact Witness’s – this can generally occur as well when the accident scene is visited. Many times, witnesses might not have been documented in the accident report. In residential areas, they could have observed the accident from the comfort of their living room, without anyone knocking on their door to obtain a statement. That is where your attorney comes in. Even today, with all the advances in technology, an adequate investigation still includes knocking on doors.
4. The accident report – or any other official report of the accident or injury causing incident should be obtained and thoroughly analyzed. This can be the strongest evidence in your favor in settlement negotiations or in front of the jury. The accident report will also reveal the Officer in charge of the accident investigation. Depending on the case, it can be helpful to contact the investigating officer to see if there are any elaborations or additional information that would be useful for your case.
5. Evidence of similar incidents – whether it is an auto accident or a slip and fall case, evidence of similar incidents that occurred at the location can be the strongest type of evidence that can be revealed in a jury trial or during settlement negotiations. If the location of the accident has had similar accidents it can be used as evidence of the cause of the accident, or that the government agency in charge of the road has knowledge of the unsafe nature of the road, or at a minimum notice that something was potentially wrong. If a certain intersection has a long history of auto accidents, it will be hard for the government to claim that the road or the design of the road is safe. The California Highway Patrol keeps track of all this accident information in the Statewide Integrated Traffic Records System.
6. Employment Records – all employment records need to be obtained, ideally showing how long you have worked there, how long you have been out of work, and how many hours you normally work. Once you sign a release, your Accident Attorney can obtain all of this information from your employer.
7. Contact the Insurance Company – once you sign up with Sacramento Personal Injury Lawyer Michael Rehm, the other sides insurance company will be notified of this right away. Two reasons this can be important. One, once the insurance company is on notice that you have hired a lawyer; they can no longer contact you about the case. Two, we will also be requesting the policy limits of the other sides insurance policy. This generally allows us to understand what kind of ability the other side has of legitimately complying with any judgment against them, as well as the value of the case.

Free consultations – (916) 476-9781